Posted
by
timothy
on Thursday November 14, 2013 @03:24PM
from the read-away dept.

NewYorkCountryLawyer writes "In a case of major importance, the long simmering battle between the Authors Guild and Google has reached its climax, with the court granting Google's motion for summary judgment, dismissing the case, on fair use grounds. In his 30-page decision (PDF), Judge Denny Chin — who has been a District Court Judge throughout most of the life of the case but is now a Circuit Court Judge — reasoned that, although Google's own motive for its "Library Project" (which scans books from libraries without the copyright owners' permission and makes the material publicly available for search), is commercial profit, the project itself serves significant educational purposes, and actually enhances, rather than detracts from, the value of the works, since it helps promote sales of the works. Judge Chin also felt that it was impossible to use Google's scanned material, either for making full copies, or for reading the books, so that it did not compete with the books themselves."

for us all. Better deal would say, by all means copy, BUT you must make it fully available. I'm going through awful problems right now trying to get a copy of a 1776 book which was microfilmed ages ago, then digitised more recently. I don't mind people who did both processes getting a fair return but we need to decide what a fair return is. Super profits for people like the infamous convicted modern Enlgish airport fiction writer just don't cut it.

When the book in question was written in year 1776 the situation isn't quite that simple. If I buy their scanned copy, and then OCR it can I then sell it or make it available for free? The copyright isn't there anymore, I'm only dealing with the data in the book, I believe I could legally print and sell it, right?

Well, the book might be copyrighted anyway; it depends largely on when it was originally published, not just on when it was written. But assuming that it is in the public domain, and that you haven't agreed to some contract to not make and sell copies of it (as a prerequisite to get access to it, for example), then yes, you can make more copies and distribute them as you like.

One of the four factors used in the copyright statute to determine whether or not a use is fair use is: "The amount and substantiality of the portion used in relation to the copyrighted work as a whole"

The idea here is to protect stuff like a critic quoting a bits of a book/movie in their discussion of a piece without violating the copyright of that book/movie. If it weren't for the 'snippet' view that prevents easy access to 100% of each scanned book, that factor would have weighed against google here, not for them. While one can only speculate whether that would have been enough to change the outcome, it is a certainty --the judge explicitly describes how, if you're interested-- that google's presentation of less than 100% of the scanned works helped secure this decision.

> I don't mind people who did both processes getting a fair return but we need to decide what a fair return is.

It's 9.8%. Over the long term, they'll average 9.8% per year and there's nothing we can do to change that.

Suppose for a moment that there was a very high return. Let's say 50%.

Microsoft and their Bing divison, along with Amazon and others would be watching that and thinking:
We have $50 million dollars to spend on our next project.
We can either spend that on developing a game console, with an expected return of 2%, or
on digitizing books, with a return of 50%.
Fire up the digitizer!

People generally invest in the type of projects that are getting the best returns. So due to the 50% return, you'd have Google, Microsoft, and Amazon all offering different versions of the service. Maybe Microsoft would have no ads, but it would only work in IE11 on Windows 8.1.Amazon's would be similar to Google, but with fewer, more obtrusive ads for full books that float over the digital pages.

With two competitors, Google's return would decrease. Specifically, new entrants keep coming in with different (better, cheaper, etc.) versions as long as the return is higher than other projects. It turns out that "other projects" return 9.8%, on average. So anything with a risk-adjusted return higher than 9.8% draws competitors.

If money goes IN to lines of business where it'll make more than 9.8%, where does it come FROM? From shutting down (or foregoing) operations that make less, of course. Any business with a risk-adjusted return less than 9.8% has some providers leave the market for greener pastures.

With the competitors close, their market share goes to the remaining competitors, so the remaining people get increased returns. Specifically, competitors keep leaving and the return keeps increasing until the return is as good as other options - about 9.8%.

So that's what you end up with - in the long term, any industry in the US has a risk-adjusted return of about 9.8%. Some, like oil or farming, are subject to high volatility - good years and bad years. Exxon for example is affected by oil prices, so it goes up and down. Exxon averaged 11.62% over the last 10 years, 7.86% over the last 15 years - everything swings up and down around that 9.8% mark.

If money goes IN to lines of business where it'll make more than 9.8%, where does it come FROM? From shutting down (or foregoing) operations that make less, of course.

That would only be true if these companies had no liquid assets, no "war chest," and all of their money was working at 100% all the time.

None of that is true. The existing businesses most in a position to compete in a new area in fact tend to be large and have difficulty keeping their money working; when they see an opening, they can throw a bunch of money at it that was otherwise not working effectively.

And startups the drain is more in people that available money, because there is usually lots and lots mo

Obviously people can only invest by having assets invest. You don't build up a "war chest" by throwing away your money on a losing proposition. As you said:

"when they see an opening, they can throw a bunch of money at it that was otherwise not working effectively."

In other words, stop doing things that aren't effective at generating a decent return. We saw this today on Slashdot. Auto maintenance wasn't generating a return near 9.8%, so Sears is closing it's auto centers and putting those resour

Even if you think that Google is Damien's evil brother, this is the right damn decision.

Agreed, and reading from the full text of the decision, its hard to see what the Authors Guild is all about.

You can't get the full text of a copyrighted work from google, no matter how hard you try. You getsnippets, not complete pages, and not snippets from all the pages.

Further, most of the Author's guild whining was all about the fact that Google is a for profit company.

Yet the decision clearly considers this:

Here, Google does not sell the scans it hasmade of books for Google Books; it does not sell the snippetsthat it displays; and it does not run ads on the About the Bookpages that contain snippets. It does not engage in the directcommercialization of copyrighted works.

Google does, of course, benefit commercially in the sense thatusers are drawn to the Google websites by the ability to searchGoogle Books. While this is a consideration to be acknowledgedin weighing all the factors, even assuming Google's principalmotivation is profit, the fact is that Google Books servesseveral important educational purposes.

What they're "about" is, google has lots of Beeeeeellions of dollars laying around, and since they already did this, might as well make a grab at some of their cash. Regardless of if google's actions even harm them.

In the end, their greed cost them a bunch of legal expenses, whereas the moral high ground would have permitted them instead to focus on the free promotional value.

You can't get the full text of a copyrighted work from google, no matter how hard you try.

You may not be able to get the full text of the copyrighted work, but Google can and has. Google are profiting from an unauthorised copy made of a copyrighted work. If google are allowed to do it, why can't I? I only want to make one copy of each book from the library. I don't intended to sell that unauthorised copy to anyone, heck I don't even intend to let anyone else see even snippets of it. What's the difference? Why are Google allowed to make copies for their own purposes but I am not? Is it because th

You may not be able to get the full text of the copyrighted work, but Google can and has. Google are profiting from an unauthorised copy made of a copyrighted work. If google are allowed to do it, why can't I? I only want to make one copy of each book from the library. I don't intended to sell that unauthorised copy to anyone, heck I don't even intend to let anyone else see even snippets of it. What's the difference? Why are Google allowed to make copies for their own purposes but I am not? Is it because they are a rich company who can afford lawyers to override copyright laws?

You can. Provided that it's a fair use. Any use can be fair, but not every use is; it depends on the circumstances. There's a four factor analysis that's usually done in order to determine whether a use is fair or not, though sometimes one factor can outweigh the others, and it's a good idea not to lose sight of the big picture.

If you copy books for your own use as a substitute for buying them, my guess is that this is not a fair use. OTOH what Google does is copy books not in order to use them itself, but

I'm sorry, but did you miss what happened with a guy named Aaron Schwartz? Maybe you missed that story, but in essence he was doing the same thing. Did you also miss all of the Amazon successful lawsuits against B&N?

Google was guilty of breaking into facilities they don't own, hacking a computer network, and releasing every page of every book ever printed???

Last time I checked, the facts were that: (1) Swartz had free and open access to both the building and the closet in which he placed his computer, (2) any hacking he did amounted to (possibly) changing his MAC address and violating terms of service, and (3) none of the material he downloaded was released by him to the public. Have any reliable sources to contradict this?

You are ignoring facts to make such a statement, primarily that he was not found guilty of anything. He was allowed access to a buildings, allowed access to a network, and was allowed access to the documentation he was downloading. The people requesting prosecution were not the authors, but a DRM company making a profit off the materials. Most of the documentation Aaron was downloading was public domain with no Copyrights, being hoarded by the same DRM company. Even after he was asked not to copy, there

Just go read the Judges ruling.You clearly don't have a clue about how the Google books search works. You are talking nonsense.

Nobody said google was only USING snippets. Google will only GIVE YOU snippets.Just like the librarian that won't let you copy a whole book but will let you copy a coupe pages.

Google doesn't SELL these snippets. There is no advertising on the pages that contain Snippets.There are unpaid links to stores that sell the book you are looking at. And some libraries that areknown to have a copy.

READ WHAT THE JUDGE SAID FOR CHRISTS SAKE.Its a court ruling. Anyone who wants to copy google's model, in whole or in part can point to that ruling in court.Unless or until it is overturned, it is the law of the land.Please, I beg you, go read the ruling. You are making an idiot of yourself on the internet.

I did read the ruling, which should be obvious if you had actually attempted to read and comprehend my post. The judge claimed that Google's snippets lead to people purchasing books. The same could be said for Lyric sites, that as of yesterday were receiving DCMA take down notices for copyright infringement.

I also never stated Google sold the snippets. Stop inventing false statements! Go back and read what I wrote, and if it was not clear ask questions instead of inventing nonsense. I did state that Goo

Read my 2nd post, the whole page IS ads! There is no entry there that is NOT advertising. Or you trying to claim that a link to Amazon, B&N, Wallmart, etc.. from Google will generate Google no revenue?

Lyrics is not the song, the song is the music and the lyrics. Both sites are giving parts not the whole, both could be of the same value to the copyright holders. Hard to take your bias glasses off, I get it.

How do you know that it generates revenue for Google? Further, how do you know that the links always generate revenue for Google (as opposed to it depending on the book displayed on the page, the book's copyright status, and any pertinent license agreements between Google and the book's copyright holder)?

In fairness, I don't. Also, to be fair, I did not see the evidence that this Judge did when he made his ruling. It is quite possible that Google makes no revenue from this "now", and has no plans to change that. With that in mind, these don't look like freebies for Amazon, B&N, etc.. (these are not flat links, but uniquely encoded for clicks) and Google does not give things away as a rule. We have a company with a descent track record of dishonesty at the expense of others. Not always, but enough in

. (these are not flat links, but uniquely encoded for clicks) and Google does not give things away as a rule.

gain, with the alligations of high crimes based on mere speculation.

Most are indeed flat links. Follow one of them. They lead directly to the page of the same name at the seller' web site, or to the sellers internal search facility via isbn numbers.

Merely mentioning that you can buy the book if you go to another site is not advertising.Even if there was an agreement for Barnes And Nobel to pay google 12 cents for a hit to their site, it still wouldn't be advertising, because the B&N link looks no dif

It is cited in the opinion as the Clancy declaration, with the specific paragraph noted. You can probably dig it up yourself. This would've been available not only to the judge, but also to the opposing side, and they had the opportunity to present evidence to the contrary. Apparently they either didn't or didn't provide anything more convincing than what Google had. Part of what courts do is settle disputed questions of fact. If this was disputed, it is now settled so far as this case goes: the links are n

Even if there was an agreement for Barnes And Nobel to pay google 12 cents for a hit to their site, it still wouldn't be advertising,

That is funny, perhaps you should get a dictionary and look up the definition of advertising. Your description of the transaction that follows is amazingly identical to how a lyric site would generate revenue from music. The lyric site would not make money from the song either, they would make the money from the company selling the song after a user followed the link. These sites are not selling lyrics any more than Google is selling the books.

Most are indeed flat links. Follow one of them. They lead directly to the page of the same name at the seller' web site, or to the sellers internal search facility via isbn numbers.

Thanks for the well thought out response. If I have the time I'll go back and see if I can find what you said is lacking, because I'm baffled on how the links were not considered advertisements. I completely neglected the thoughts that the case law could be used by others, and appreciate that pointer.

But that's just it, they don't show ads down the sides when showing you snippets.

Go search for a quote from any book, and look at the snippets.
You will see links to places you can buy the book, as well as libraries that have it.

I'd say the link to buy the book is essentially an ad, no? I assume that Google gets some sort of click through payment or compensation when a purchase is made. And I'm totally cool with it, it's a valuable service and it's awesome that they proved the links to libraries, etc.

Google is often, but not always, one of the places you can buy the book.

The others include Barnes and Noble, Amazon, Books a million, ebay and places you haven't even heard of.I don't know if there is an agreement with those places or not, but I'm certain there isn't an agreement when you click the links to find it in a library.

Not EVERY link on a google site is a paid link. They are very clear in designating paid advertisers from simple search links.

The SUMMARY tells you no. Two key facts were that a) entire books are not available, you can only read a couple of pages and b) it doesn't compete with full copies, but rather increases sales of full copies by helping consumers find books they are interested in.

A key question is whether Google copied all the pages then displayed some of them, or only copied some of the pages and then displayed all that they copied. If the first, then why can't an individual copy a whole book then claim to have only read some of the pages? (That's what the NSA claims to be doing with our phone records, apropos of almost nothing.)

Generally, you CAN copy a whole book, it isn't necessary to claim you only read a few pages.You can copy it and read all of it, or copy a whole album on tape and then listen to the whole album.What you can't do is sell whole copies.

Yes, that's a three sentence summary of 100 pages of law, so of course there are more details than that.

For most of the books Google did, yes. They are either public domain or Google has the publisher's permission. For the others, unless there are facts I'm not aware of, I don't suppose that would be legal. However, I haven't read the entirety of the court's opinion. It's quite likely there was a reason the court ruled as it did - some matter of fact or law not mentioned in the page or two we read from the 30 page opinion.

But can I go to your house, copy your books (with your permission), and then take my copies with me?

Yes.

But I could get in trouble if I invite you over specifically for that purpose, or if I charge you a fee, or if I advertise to my friends that they can come and copy my books. This is exactly the same as copying of cassette tapes, and making cassette tapes of radio broadcasts.

You ARE allowed to share with your friends in a very limited way. But it has to be like, your friend is already visiting, and asks to make a copy, and makes the copy themselves.

You're full of it. If you have so much knowledge, disagree! Do it! I dare you.

But no, you can't actually identify anything wrong with what I said, or offer some sort of differing explanation. So instead of commenting with general, unspecified, weasel-y claims of authority... look it up.

Sure, and you can use this case as precedent in your defense. Make sure your method of presenting the scanned books is at least as hard to read or you'll lose the "not competitive with the original book" clause.

I'm setting up a free service. Anyone can contact me with a question about some topic. I'll search all the books in my fairly large and diverse personal library, and if I find something cool on the topic, I'll get back to you with full bibliographic information and read to you a short excerpt from the book. Oh, and, of course, I'll also read to you a very short, but interesting and personalized, advertisement. I apologize that I won't be able to handle the same volume as Google, nor can I promise the same e

I would like to retain your services in this matter. Please list your bank account information so that I may transfer a retainer payment to you. Thank you.
Sincerely,
Prince Bernard Koffi Austine
Nigeria

Traditionally you could. If you owned a book or a tape or a record, you traditionally could make copies of it for your own personal use without needing permission. Collecting your favorite songs onto a single tape, or copying your records onto tape to listen to them in the car, or making copies so the originals wouldn't get worn, were all considered perfectly OK things to do as long as if you sold the original those copies either went to the buyer or got destroyed. It's only been very recently that copyright holders have been trying to claim that you can't do any of that.

Here here! There will always be Anonymous twitwad morons who will jump to conclusions especially when it comes to bashing Google regardless of the facts. If Google are seen to be fighting for fair use then they must be doing something nefarious. I have even seen claims here that Google must have bought out the judge! NOTICE that the fuckwads posting the fud are all anon cowards. NOW when Slashdot posts an article about what the Rockstar consortium is up to the same fuckwads come out of the wood works with t

To clarify, in the US at least, you can get sued for downloading, it's just unlikely.

The usual plaintiffs prefer to go after targets toward the other end of the food chain because it's more effective and more efficient (e.g. A single suit against Napster was more beneficial to them than a million cases against Napster users would've been). And if you're merely downloading, you're harder to catch.

Still though, it is typically illegal to download copyrighted material without authorization, and the remedies th

You can legally do the same. Just the summary alone mentions two key considerations:

Google allowed readers to see just a couple of pages, excerpts.That did not compete with sales of the full book, but rather increased the author's sales of the books by helping people find books they might like to buy.

The opinion has another 20 pages looking at the various factors involved.

You probably make the mistake of believing the copyright notices that the movie companies put on movies, which are almost never even true (as stated). Distribution is mostly where you actually get into trouble. Making a copy is only a problem if you are doing something that isn't a "fair" use.

In this case google's use was fair because they put technical barriers in place to ensure that they only distributed snippets, and didn't show their ads on or otherwise make money off of those snippets.

If google can legally copy books (even when profit is involved) then why can't I do the same?

Wouldn't I get hammered with copyright infringement problems if I scanned in books I did not author myself?

The Judgement clearly states:

Here, Google does not sell the scans it hasmade of books for Google Books; it does not sell the snippetsthat it displays; and it does not run ads on the About the Bookpages that contain snippets. It does not engage in the directcommercialization of copyrighted works.

Google does, of course, benefit commercially in the sense thatusers are drawn to the Google websites by the ability to searchGoogle Books. While this is a consideration to be acknowledgedin weighing all the factors, even assuming Google's principalmotivation is profit, the fact is that Google Books servesseveral important educational purposes.

That Google is a FOR Profit company doesn't enter into it at all. So is Barnes and Noble.The pages the contain the snippets contain links to many different sites from which youcan buy the book (including Google Books in some cases) as well as where youcan find it in a library.

Why don't you1) try out google book search and see what they do2) read the judgement and see what it says.

If you do the same as google did, you can point to this judgement in your defense.Google has opene

Copying in and of itself is not actually a problem. It is the distribution that usually causes legal conflicts. The act of copying is part of the physical process of distribution, and the number of copies figures into the analysis of harm once a copyright violation is proven.

Somebody help me here. This sounds like somebody claiming to be a member of the United States judicial branch has made a reasonable and correct decision. Please tell me the other branches are still doing whatever they can to correct this aberration...

As for the "teleprompted", is wasn't simply that he used a teleprompter. It was that he couldn't give a coherent speech without it, and he bungled many speeches even with it because he put no mental effort into the activity.

Bush may have invented new words, but at least he was coherent about it.You knew what he meant, which is the point of speaking. I don't agree with Jimmy Carter's policies, but I know he can answer a question with an inte

In the US, "Fair Use" refers to a defense against a copyright violation. Section 107 of the US Copyright statute lists 4 different factors that can be used to determine whether or not a specific use is fair. Judge Chin discusses each factor in detail, then concludes with an excellent summary of why he believes that this project is a fair use:

In my view, Google Books provides significant public benefits. It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders. It has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books. It has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books. It preserves books, in particular out-of-print and old books that have been forgotten in the bowels of libraries, and it gives them new life. It facilitates access to books for print disabled and remote or underserved populations. It generates new audiences and creates new sources of income for authors and publishers. Indeed, all society benefits.

Depending on how Chin's decision stands up on the inevitable appeal, this paragraph has probably given us some very useful & explicit design considerations to incorporate in projects likely to face similar claims of copyright violation.

The benefits Google Books and full text search provides are only ONE Part of the judgement, and not even the most important part.

The key finding was that Google does not provide the full text of the books, can't be tricked into giving the full text of the book,and actually contains links to where the book can be legally purchased (or borrowed from a library).

Even those books that are out of print will not be shown in full text if it is still under copyright.

Every 4 prong fair use analysis I've seen follows the model Chin does here: outline of applicable law, explicit mention of the four prongs ((1) purpose and character of the use, (2) nature of the copyrighted work, (3) portion used in relation to work as a whole, and (4) effect of the use on market value of copyrighted work), a detailed analysis of each prong, and then an overall assessment, kind of a bird's eye overview of the entire situation.

The overall assessment that you quoted merely addresses the benefit to society aspect, it essentiall covers only one prong of your four prong argument, and addresses a second prong only in passing.

None of that would be sufficient, if google was replicating the books (distributing copies). Copyright is named specifically for what it does, preserves the right of copying works for the author. Key to not violating the copyright is ONLY providing snippets.Fair use is quite restrictive as to amount (percentage)

Afraid I'm going to have to value the words of my law professors over yours on this particular point. It is not a four prong "argument", that is considerably understating things. Four factor analysis is THE LAW here, it's not an argument. The four factors/prongs in fair use analysis are explicitly stated in the statute. They can be found at 17 USC section 107. http://www.law.cornell.edu/uscode/text/17/107 [cornell.edu] . "Benefit to society" is not one of the four factors. Chin's discussion of the benefit to society is n

Well there is little use debating what is a matter of speculation of some possible future use. Sounds like we disagree on our perception of relative importance of parts of the decision. What detailed design guidelines do you think will be more instructive?

Here's why I think the summary will be more applicable for future projects. The technical specifics of google books that Chin addresses seem like they'd be limited, basically, to copycats of google books. OTOH, the summary section could be directly applie

Google is very clearly in the wrong, legally, with their usage. Technically, they are violating copyright flagrantly, and profiting from it. And I am so glad the judge decided the way he did, because despite very clearly being illegal under current law, the end result is very much in the public interest, as well as being good for publishers despite their throwing a tantrum about it.

Google limits the amount of pages you can view on media with active copyrights. It is tied to your IP which remains blacklisted for some time (months?). It would be possible to get a full copy if you could get around the blacklisting but that's more trouble than just getting a copy of the book in the first place.

yet if you target other sections with your search the limit would slide and if you were clever/persistent enough you would be able to access the full text

Try it some time. It won't work.

From the judgement:

Google takes security measures to prevent users fromviewing a complete copy of a snippet-view book. For example, auser cannot cause the system to return different sets of snippetsfor the same search query; the position of each snippet is fixedwithin the page and does not "slide" around the search term; onlythe first responsive snippet available on any given page will bereturned in response to a query; one of the snippets on each pageis "black-listed," meaning it will not be shown; and at least oneout of ten entire pages in each book is black-listed.

An "attacker" who triesto obtain an entire book by using a physical copy of the book tostring together words appearing in successive passages would beable to obtain at best a patchwork of snippets that would bemissing at least one snippet from every page and 10% of allpages.